The order compelling plaintiff to make Smith a party defendant to .the action cannot be upheld unless it is authorized or required by sec. 2610, E. S., as amended by ch. 41, Laws of 1883 (S. & B. Ann. Stats, sec. 2610). The material portions of the section are as follows: “ The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but-when a complete determination of the controversy cannot be had without the presence of other parties, or any persons not parties to the
It will be observed that the statute requires the court to order other parties brought in (1) when a complete determination of the controversy cannot be had without their presence; and (2) when persons not parties have such interests in the subject matter of the controversy as require them to be made parties for their due protection. These provisions are imperative. The section also confers power upon the court, in actions to recover real or personal property, to grant the application of a person not a party to the action, but who has an interest in the subject thereof, to be made a party. This case is not within the latter provision, because it is not an action to recover real or personal property, but to recover damages for the unlawful conversion of personal property. Neither is it within the second provision above mentioned, because it is not necessary to the protection of Smith that he be made a party. Should plaintiff sue him for the $4,000 which the defendants paid him, or should the defendants sue him to recover it back, his defense to either such action would not be affected in the least degree by the judgment herein. Hence, if Smith is a proper party, it is because a complete determination of the controversy cannot be had without his presence as such.
It is not claimed that Smith is a necessary party to the action for the purpose of trying the issue made by the averment in the answer that the defendants paid over to him the $4,000 at the request and by the direction of the
Should defendants fail to prove such request and direction by plaintiff, undoubtedly they may show, under their general denial, that Smith was entitled to' the $4,000, or some portion of it, because he had a valid lien upon it for professional services in the action against Little and others, or for any other reason. The existence of such lien, when the money was paid over to Smith, being established, it is a defense to the action to the extent of the lien. The question is therefore whether, under the circumstances of the case, Smith is a necessary parity to the action in the trial of the issue as to the existence, at that time, of such alleged lien.
If the $4,000 was paid over to Smith wrongfully, the plaintiff might have joined him in this action. But he elected not to do so. A wrongful conversion by more than one person is a several as well as a joint wrong, and the injured party may sue one or more of the wrongdoers without suing them all. There is- .no authorized practice and no rule of law under which he can be compelled to make all of the wrongdoers parties to the action, unless he chooses to do so. If Smith is a necessary party to the action, it is because, when the $4,000 was paid to him by defendants, he had or claimed a lien thereon. It must be conceded that, had defendants retained the money in their own hands, upon making it appear to the court that Smith claimed a lien upon it they would be entitled to have him made a party to the action, so that he might litigate with plaintiff his right thereto. This is an application of the familiar rule that if a party is sued for money or property in his hands, and there are several claimants thereof, he is entitled to have all such claimants brought in as parties, to
We have no such case here. The defendants did not retain the money in controversy and apply to the court to bring in Smith as a party to interplead with plaintiff and settle their respective rights thereto. Neither did the defendants bring the money into court, in which case the court would have discharged them from liability and substituted Smith as the defendant in their stead, as might have been done under sec.- 2610, S. & R. Ann. Stats. Rut they adjudicated for themselves that the lien claimed by Smith was valid to the amount of $4,000, and paid over that amount to him. They thus destroyed the specific fund in question, and when the order appealed from was made there was no such fund and, of course, no existing lien thereon. The defendants, having thus taken the matter into their own hands, and having voluntarily paid the-
These observations are made upon the hypothesis that the defendants fail to prove they paid the money to Smith at the request or by direction of plaintiff. On such hypothesis the defendants have voluntarily placed themselves in the same position in which any other defendant in an action for a wrongful conversion of property will find himself if he has sold or given away such property, or voluntarily turned it over to alleged creditors of the plaintiff. In no such case would the court entertain for a moment the proposition that the persons to whom the property was thus transferred were necessary parties to an action to recover damages for the wrongful conversion thereof. We find no different rule laid down in any adjudged case, or in any legal treatise on the subject.
But the defendants say that in this action they may fail to establish Smith’s lien for more than $3,000, and thus be compelled to pay plaintiff $1,000, and then when they sue Smith for the $1,000 he may be able to establish his lien at $4,000. Thus they would be out of pocket $1,000 unless Smith is brought in as a party and thus bound by the adjudication in this action. There are two sufficient answers to this argument. One is, the defendants should have thought of that contingency before they passed upon the validity of Smith’s lien and paid the $4,000 over to him, and should have paid the money into court, or retained it in their own hands and taken the statutory measures to have the validity of the alleged lien judicially determined. The other answer is that they could have bound Smith by the judgment in this action by tendering the defense thereof to him. Saveland v. Green, 36 Wis. 612.
By the Court.— The order appealed from is reversed.